England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		Friday, 7th December 2001

Friday, 7th December 2001

1. MR JUSTICE COLLINS: This is a claim by Catherine Chester for judicial review of a decision of the Secretary of State for Work and Pensions (as he now is), a decision made as long ago as 8th February 2001 but reconsidered and confirmed on 3rd August of this year. These proceedings were issued but properly not pursued while the matter was reconsidered.
2. The background can be shortly stated. The claimant and her husband unfortunately separated in November 1999. There are two children of the family. Both are very young. The elder daughter was born on 3rd May 1996 and so is now five. The younger son was born 14th August 1999 and is, therefore, now two years old. In October 2000 a contact order was made by the court. That provided, so far as is material, that the children should reside with the claimant over weekends and during half of school holidays and over each alternate Christmas. It further provided that her husband should have the children with him during the week in school term times, and for half of the school holidays.
3. The question before me arises out of the payment of Child Benefit. The claimant applied for Child Benefit on 13th November 2000 and, equally, the husband claimed Child Benefit. The Secretary of State required further information, and after considering the matter refused the claimant's application on the ground that the benefit was being paid to her husband. The Secretary of State reconsidered the decision and confirmed it. The matter was further reconsidered and reaffirmed on 3rd August.
4. The importance of the payment of Child Benefit is this. Both the claimant and her husband are dependent upon state benefits. She receives Jobseekers' Allowance; he receives Income Support. There are premiums payable under both which produce roughly similar sums, on the basis that the person who has the responsibility for a dependant, in this case the children, will receive extra amounts to reflect that responsibility. Normally, the person in receipt of Child Benefit will be treated as the person who has that responsibility. In those circumstances, the actual amount of Child Benefit is subsumed in the Income Support or Jobseekers' Allowance. But the party in receipt of the Child Benefit receives extra sums which are in excess of the actual amounts of the Child Benefit. Accordingly, the reality is that whoever receives the Child Benefit in a situation such as this, receives extra sums whereby the maintenance of the children can be achieved.
5. What the Secretary of State was faced with here was a very difficult decision. The husband, in terms of days, was having the children with him for longer periods. The elder child is no doubt now at school, although the younger, being only two years old, is unlikely at present to be. On the other hand, the mother has the children for what are substantial periods, namely each weekend, and for a period of probably some two or three weeks during the school holidays (this may be less depending upon the length of a particular school holiday). Accordingly, she has outgoings which are caused by her having to look after the children during those periods, but she receives no monies at all to provide for those outgoings.
6. The basis of the Secretary of State's decision is set out in the reconsideration in these terms:

"I have also taken into consideration the effect the decision will have on entitlement to other child allowances and family premiums paid with other benefits claimed by both Mr and Mrs Chester. This is a difficult decision to make. To remove Child Benefit for one of the children from Mr Chester would mean he would lose child allowance for one child. This could jeopardise his ability to care for both children for the hours they are with him. However, by denying Mrs Chester Child Benefit she would also lose child allowance, including family premium, entirely. This decision will adversely affect the parent to whom Child Benefit has not been awarded but Child Benefit cannot be paid on a part week basis to reflect the amount of responsibility a person has for a child during a week. As Mr Chester has care of the children for 5 days a week during term time he would be more adversely affected by not having Child Benefit for one of the children than Mrs Chester would be by getting no Child Benefit (and of course no child allowance and family premium) for the 2 days she does have the children. I therefore consider that the most reasonable and equitable decision for the Secretary of State to make is for his discretion to be exercised in favour of Mr Chester and for Child Benefit to be awarded to him in respect of both children from and including 11/12/00."

7. The Secretary of State has clearly recognised the problem, but has felt himself constrained by the form of the legislation to reach the decision that he did reach as being the fairer one available to him. The constraints result from the provisions of the Social Security Contributions and Benefits Act 1992 which is the Act under which Child Benefit is payable. The question of priority (that is to say where there are situations which are not straightforward between persons entitled to Child Benefit) is dealt with in schedule 10 to the Act. This sets out in paragraphs 1 - 4 who should receive the Benefit in various particular circumstances. None of those applies directly here. Paragraph 5 is the important paragraph. This reads:

"As between persons not falling within paragraphs 1 and 4 above, such one of them shall be entitled as they may jointly elect or, in default of election, as the Secretary of State may in his discretion determine."

8. Unfortunately, Mr and Mrs Chester have not been able to agree as to who should receive the Child Benefit or how the matter should be divided. It is recorded in the Secretary of State's reasons for reaching his decision that Mr Chester was agreeable that Mrs Chester should receive Child Benefit for one child during the school holidays. But he qualified that by saying that he still wanted to cash the Benefit for that child (i.e. he wanted to have his cake and eat it). He was happy that his wife should receive some payment during the school holidays but he did not want, perhaps understandably, to lose out on the amounts that would be payable to him. But it does show that he certainly recognises the damaging effect that the absence of any payments would or could have upon his wife's ability properly to be able to look after the children during the period that the court considered that they should be with her. Incidentally, the court order in this respect was a consent order. Clearly, he recognised the need for his wife to be able to maintain proper contact with, and so a proper relationship with, the children.
9. The only other legislative provision to which I think I need refer is contained in Regulation 34 of the Social Security (Claims and Payments) Regulations 1987. This provides, under the heading: "Payment to another person on the beneficiary's behalf" by subparagraph (1):

"Except in a case to which paragraph (2) applies, the Secretary of State may direct that benefit may be paid, wholly or in part, to another natural person on the beneficiary's behalf if such a direction as to payment appears to the Secretary of State to be necessary for protecting the interests of the beneficiary, or any child or dependant in respect of whom benefit is payable."

10. That provision is applicable in a case where, for example, the beneficiary (that is to say the person who is entitled to receive the Child Benefit) disappears, or is otherwise unable (or perhaps even unwilling) to use the Benefit for the proper purpose. In this case the Child Benefit is intended to be used for the purpose of looking after the child. I recognise, of course, that since it is a benefit that is payable whether the recipient needs it or not, it frequently is not used for that purpose. Nonetheless, that is what lies behind it. In a case such as this, where there is no money otherwise available, clearly it is important that it should be used for the benefit of the child. I am told that usually this provision is used where the person entitled has disappeared. In those circumstances it means that some third party can receive the benefit, but on the beneficiary's behalf. That means that the third person holds the benefit effectively on trust for the purpose of it being used as it should.
11. In those circumstances, prima facie, it would seem that the third party should not have whatever other benefits he or she receives affected by receipt of that sum. I say "prima facie" because when I put this to Mr Ward in the course of argument as being a possible solution to the harshness which the Secretary of State has himself recognised in the division, he recognised the force of the suggested construction but was not able (understandably, and I am not in the least criticising him for this), to tell me whether there was perhaps any other provision or any administrative problem which would mean that such a solution was impossible. Nevertheless, since for reasons, which will become clear, I am going to quash this decision and send the matter back for reconsideration, that is an aspect which can be considered when it is sent back.
12. The argument has been based largely upon an alleged breach of Article 8 of the European Convention on Human Rights. It is said that the right to family life includes the right to maintain contact - and proper contact - between parent and children. That of course is uncontroversial. Equally, it is said that any action by the state which has the effect of putting in jeopardy, or adversely affecting, that sort of contact is capable of breaching Article 8. Again, that is undoubtedly uncontroversial. But one must always remember that Article 8 is not an absolute right. It carries with it Article 8.2 which enables Article 8.1, which contains the right to family life, to be breached if certain conditions are fulfilled. Article 8.2 reads:

"There shall be no interference by a public authority with the exercise of this right [that is the right to respect for private and family life] except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

13. Here, no doubt, the economic well-being of the country is what is prayed in aid.
14. It is quite clear from Strasbourg jurisprudence that the rights under Article 8 do not require that the state actually pays money in order to enable a person to have the wherewithal to keep his family together. That is subject to many exceptions. In the context of this case, although there is no obligation to pay any money, there is in my view an obligation to apply the provisions which enable, as a result of Social Security provisions, the individuals in question to receive state funds in such a way as does not breach their rights under Article 8.
15. Here, of course, the balancing exercise had to be carried out because whatever decision was made had the potential to affect adversely the rights of both husband and wife and, indeed, the children. The Secretary of State had to have regard to all those matters. But there is no question but that the decision not to pay anything to Mrs Chester, but to pay all the Child Benefit to Mr Chester, inevitably would have the result that she would be likely to be unable to maintain the children whilst they were with her and this would put in jeopardy her ability to maintain the contact which was necessary to keep the family life together. It has not reached that stage yet, but the potential is clearly there.
16. So the Secretary of State obviously has to bear that in mind in reaching whatever decision he reaches, and I did not understand Mr Ward to argue to the contrary, if put in those terms. That is as I see it, as far as Article 8 applies. It does not really matter for the purposes of this case because the claimant does not need to rely on Article 8. The Secretary of State recognised that the decision that he reached was going to result in harshness either to husband or to wife. On balance, he decided that the harshness to the wife was outweighed by the harshness to the husband that would result from any other decision.
17. It seems to me that it would have been possible for the Secretary of State to have considered a very much more refined approach. There was nothing in principle to prevent him taking the view that, for example, during the school holidays the wife should have the amount for one and the husband for the other, because that would produce an equitable result on the basis that each was being looked after for half the school holidays. I talk about the period of the school holidays because I am told that there is a minimum period of four weeks during which entitlement must persist, that is to say that it would not be possible to say that, for example, because for two weeks the children were being looked after by the wife, the wife could have the child allowance for those two weeks; that would be too short a period.
18. It is perfectly clear in my judgment that there is scope for producing what on any view would be a fairer result by taking a period to reflect the fact that the wife has the children for at least half the school holidays together with of course the weekends. Equally, it is possible, although I reach no final view on this, for the reasons I have already indicated, that there may be a possibility of using Regulation 34 so that the claimant receives some extra amount, and that that amount does not affect her entitlement to the allowances that she already has. If that is possible under Regulation 34, and I am not deciding one way or the other whether it is, that is a matter which also can be considered.
19. That being so, in ordinary Wednesbury terms, the Secretary of State has failed to have regard to a relevant consideration, namely that as a matter of law he could have approached this case in a way which could have reflected more exactly the division of care that took place. It would of course mean that husband might receive less, but it would mean that the claimant would receive more so as to enable her to have the wherewithal to maintain the contact that is essential for compliance with the court order.
20. Accordingly, for those reasons, I propose to quash the decision of the Secretary of State and to remit the matter for him to reconsider in the light of this judgment.
21. Ms Reindorf, you are legally aided I take it?

MS REINDORF: My Lord, yes.

MR JUSTICE COLLINS: Mr Ward, I do not think you can resist costs, can you?

MR WARD: Certainly not, my Lord. I just have one point on your Lordship's judgment. Right at the beginning of your Lordship's judgment, where I may have misled your Lordship, where your Lordship explained about the reconsideration of the case. I should explain that the challenge was quite properly brought to the first consideration of February, and having read the grounds of challenge was then reconsidered.

MR JUSTICE COLLINS: I will amend that. It does not affect the principle.

MS REINDORF: My Lord, I am instructed to ask for inter partes costs on the basis that we won.

MR JUSTICE COLLINS: You have costs and you have the detailed assessment order that you need.

MS REINDORF: I am grateful, my Lord.

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